[Federal Register Volume 73, Number 106 (Monday, June 2, 2008)]
[Rules and Regulations]
[Pages 31363-31366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12175]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0341]
RIN 1625-AA00


Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; 
Frontier Sentinel 2008

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary moving safety zones 
around Coast Guard and Navy vessels as well as five fixed safety zones 
off to the west and south of Gerrish Island, south of Kittery Point, 
east of Jaffrey Point, and east of Odiornes Point during the Frontier 
Sentinel Exercise on the Piscataqua River, a homeland security exercise 
that will involve underwater equipment and operations. This rule will 
establish multiple fixed and moving safety zones that will be enforced 
from 8 a.m. to 5 p.m. daily on June 9, 2008 through June 12, 2008 from 
the General Sullivan Bridge, U.S. Route 16 to one mile seaward of the 
Red ``2KR'' buoy at the mouth of the river. This action is necessary to 
protect federal, state, and local assets (including unmanned underwater 
vehicles (UUV)) and others in the maritime community from the safety 
hazards that may arise from this large scale exercise.

DATES: This rule is effective from 8 a.m. on June 9, 2008 through 5 
p.m. on June 12, 2008.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0341 and are available online at 
www.regulations.gov. This material is also available for inspection or 
copying at two locations: the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays and at U.S. Coast 
Guard Sector Northern New England, 259 High Street, South Portland, ME 
04106 between the hours of 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG Kevin Miller at (207) 741-5431.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM. In conjunction with 
preparations for this exercise, the U.S. Navy and Coast Guard were not 
able to finalize the exercise scope, location, and timetables until 
April 23, 2008. Therefore, publishing of a proposed rule was not 
feasible. Nonetheless, the temporary establishment of the safety zones 
established by this rule is in the public interest.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register. Immediately 
implementing this rule promotes the public interest by protecting the 
maritime public and agency participants on the Piscataqua River during 
Frontier Sentinel 2008.

Background and Purpose

    This rule establishes five fixed safety zones as well as moving 
safety zones for the duration of the exercise. The rule is necessary to 
protect the federal, state, local, and public entities on the 
Piscataqua River during Frontier Sentinel 2008, a large scale mine 
countermeasures exercise. The exercise area will encompass all waters 
of the Piscataqua River from the General Sullivan Bridge, U.S. Route 
16, seaward to one mile past the Red ``2KR'' buoy at the mouth of the 
river. Within this exercise area, there will be numerous federal, 
state, and local vessels participating with divers and unmanned 
underwater vehicles (UUV). The UUV's will be monitored by Coast Guard, 
Navy, or state patrol vessels, designated with the blue and white Alpha 
(Diver Down) Flag.

Discussion of Rule

    The five fixed safety zones will be established where continuous 
diving operations will take place during the hours of the exercise. 
These fixed safety zones will be located near Gerrish Island, Kittery 
Point, Jaffrey Point, and Odiornes Point. The five temporary fixed 
safety zones will be enforced between the hours of 8 a.m. to 5 p.m. on 
June 9, 2008 through June 12, 2008:
    All waters on the Piscataqua River enclosed by a box starting from 
a point located south of Kittery Point at latitude 43[deg]04'41'' N, 
longitude 70[deg]43'03'' W; thence to latitude 43[deg]04'36'' N, 
longitude 70[deg]43'02'' W; thence to latitude 43[deg]04'40'' N, 
longitude 70[deg]42'34'' W; thence to latitude 43[deg]04'45'' N, 
longitude 70[deg]42'36'' W; thence to the point of beginning.
    All waters on the Piscataqua River enclosed by a box starting from 
a point located east of Jaffrey Point at latitude 43[deg]03'48'' N, 
longitude 70[deg]42'36'' W; thence to latitude 43[deg]03'15'' N, 
longitude 70[deg]42'39'' W; thence to latitude 43[deg]03'15'' N, 
longitude 70[deg]42'21'' W; thence to latitude 43[deg]03'48'' N, 
longitude 70[deg]42'28'' W; thence to the point of beginning.
    All waters on the Piscataqua River enclosed by a box starting from 
a point located west of Gerrish Island at latitude 43[deg]04'32'' N, 
longitude 70[deg]42'09'' W; thence to latitude 43[deg]04'13'' N, 
longitude 70[deg]42'05'' W; thence to latitude 43[deg]03'55'' N, 
longitude 70[deg]42'04'' W; thence to latitude 43[deg]03'59'' N, 
longitude 70[deg]41'53'' W; thence to latitude 43[deg]04'15'' N, 
longitude 70[deg]41'56'' W; thence to the point of beginning.
    All waters on the Piscataqua River enclosed by a box starting from 
a point located east of Odiornes Point at latitude 43[deg]03'05'' N, 
longitude 70[deg]42'45'' W; thence to latitude 43[deg]02'32'' N, 
longitude 70[deg]42'33'' W; thence to latitude 43[deg]02'40'' N, 
longitude 70[deg]42'34'' W; thence to latitude 43[deg]02'40'' N, 
longitude 70[deg]42'05'' W; thence to latitude

[[Page 31364]]

43[deg]02'53'' N, longitude 70[deg]42'19'' W; thence to the point of 
beginning.
    All waters on the Piscataqua River enclosed by a box starting from 
a point located south of Gerrish Island at latitude 43[deg]03'21'' N, 
longitude 70[deg]41'24'' W; thence to latitude 43[deg]02'46'' N, 
longitude 70[deg]41'13'' W; thence to latitude 43[deg]02'46'' N, 
longitude 70[deg]39'27'' W; thence to latitude 43[deg]03'32'' N, 
longitude 70[deg]40'10'' W; thence to latitude 43[deg]03'27'' N, 
longitude 70[deg]40'28'' W; thence to the point of beginning.
    All coordinates for these safety zones are North American Datum 
1983 (NAD 83).
    The temporary moving safety zones will be established as necessary 
to encompass Coast Guard, Navy, and state patrol vessels, with a radius 
of 100 yards, to ensure the safety of the maritime public from the 
hazards associated with the UUV operations. There may be as many as 
five simultaneous moving safety zones throughout the operation area. 
The establishment and enforcement of these zones will be announced via 
a Broadcast Notice to Mariners during the exercise timeframe. These 
vessels and their associated UUV's will be operating in the Piscataqua 
River from the General Sullivan, U.S. Route 16 bridge, seaward to the 
mouth of the river near one mile past the Red ``2KR'' Buoy. The vessels 
will be displaying an Alpha (Diver Down) Flag.
    Mariners wishing to transit through the moving safety zones must 
contact the Captain of the Port (COTP) or the COTP's designated 
representative at telephone number 207-767-0303 or contact the 
designated Patrol Commander on VHF Channel 13 (156.7 MHz) or VHF 
channel 16 (156.8 MHz) to seek permission to do so. If permission is 
granted, all persons and vessels must comply with the instructions 
provided by the COTP or the COTP's designated representative.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. The Coast Guard expects the economic 
impact of this rule to be so minimal that a full regulatory evaluation 
is unnecessary. The effect of this rule will not be significant for the 
following reasons: The safety zone will be of limited duration. The 
event is designed to avoid, as much as practicable, deep draft, 
fishing, and recreational boating traffic routes. Vessels may be 
authorized to transit the zone with permission of the COTP. 
Additionally, maritime advisories will be broadcast during the duration 
of the effective period. Extensive outreach has been conducted through 
the Area Maritime Security Committee, the Area Committee, and the Maine 
and New Hampshire Port Safety Forum, as well as focused outreach to key 
stakeholders.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule may affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
in the safety zone during this exercise. However, this rule will not 
have a significant economic impact on a substantial number of small 
entities due to the minimal time that vessels will be restricted from 
the area, the ample space available for vessels to maneuver and 
navigate around the zone, and advance notifications will be made to the 
local community by marine information broadcasts.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this temporary rule so that they can better 
evaluate its effects on them and participate in the rulemaking process. 
If this rule will affect your small business, organization or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LTJG Kevin Miller 
at (207) 741-5431, Sector Northern New England, Waterways Management 
Division.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to

[[Page 31365]]

health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. A final ``Environmental Analysis 
Checklist'' and a final ``Categorical Exclusion Determination'' will be 
available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 701; 50 U.S.C. 191, 
195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 
116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add temporary Sec.  165.T01-0341 to read as follows:


Sec.  165.T01-0341  Safety Zone; Piscataqua River, Portsmouth, NH, and 
Kittery, ME; Frontier Sentinel 2008.

    (a) Location. The following areas are fixed safety zones:
    (1) All waters on the Piscataqua River enclosed by a box starting 
from a point located south of Kittery Point at latitude 
43[deg]04[min]41[sec] N, longitude 70[deg]43[min]03[sec] W; thence to 
latitude 43[deg]04[min]36[sec] N, longitude 70[deg]43[min]02[sec] W; 
thence to latitude 43[deg]04[min]40[sec] N, longitude 
70[deg]42[min]34[sec] W; thence to latitude 43[deg]04[min]45[sec] N, 
longitude 70[deg]42[min]36[sec] W; thence to the point of beginning.
    (2) All waters on the Piscataqua River enclosed by a box starting 
from a point located east of Jaffrey Point at latitude 
43[deg]03[min]48[sec] N, longitude 70[deg]42[min]36[sec] W; thence to 
latitude 43[deg]03[min]15[sec] N, longitude 70[deg]42[min]39[sec] W; 
thence to latitude 43[deg]03[min]15[sec] N, longitude 
70[deg]42[min]21[sec] W; thence to latitude 43[deg]03[min]48[sec] N, 
longitude 70[deg]42[min]28[sec] W; thence to the point of beginning.
    (3) All waters on the Piscataqua River enclosed by a box starting 
from a point located west of Gerrish Island at latitude 
43[deg]04[min]32[sec] N, longitude 70[deg]42[min]09[sec] W; thence to 
latitude 43[deg]04[min]13[sec] N, longitude 70[deg]42[min]05[sec] W; 
thence to latitude 43[deg]03[min]55[sec] N, longitude 
70[deg]42[min]04[sec] W; thence to latitude 43[deg]03[min]59[sec] N, 
longitude 70[deg]41[min]53[sec] W; thence to latitude 
43[deg]04[min]15[sec] N, longitude 70[deg]41[min]56[sec] W; thence to 
the point of beginning.
    (4) All waters on the Piscataqua River enclosed by a box starting 
from a point located east of Odiornes Point at latitude 
43[deg]03[min]05[sec] N, longitude 70[deg]42[min]45[sec] W; thence to 
latitude 43[deg]02[min]32[sec] N, longitude 70[deg]42[min]33[sec] W; 
thence to latitude 43[deg]02[min]40[sec] N, longitude 
70[deg]42[min]34[sec] W; thence to latitude 43[deg]02[min]40[sec] N, 
longitude 70[deg]42[min]05[sec] W; thence to latitude 
43[deg]02[min]53[sec] N, longitude 70[deg]42[min]19[sec] W; thence to 
the point of beginning.
    (5) All waters on the Piscataqua River enclosed by a box starting 
from a point located south of Gerrish Island at latitude 
43[deg]03[min]21[sec] N, longitude 70[deg]41[min]24[sec] W; thence to 
latitude 43[deg]02[min]46[sec] N, longitude 70[deg]41[min]13[sec] W; 
thence to latitude 43[deg]02[min]46[sec] N, longitude 
70[deg]39[min]27[sec] W; thence to latitude 43[deg]03[min]32[sec] N, 
longitude 70[deg]40[min]10[sec] W; thence to latitude 
43[deg]03[min]27[sec] N, longitude 70[deg]40[min]28[sec] W; thence to 
the point of beginning.
    (6) All vessels and swimmers are restricted from entering these 
areas.
    (b) Location. The following areas are moving safety zones:
    (1) All waters on the Piscataqua River in a moving 100 yard radius 
surrounding United States Navy, Coast Guard, and state vessels 
displaying an Alpha (Diver Down) Flag from the General Sullivan Bridge, 
U.S. Route 16, to one mile past the Red ``2KR'' Buoy.
    (2) All vessels and swimmers are restricted from entering these 
areas.
    (c) Effective Date. This rule is effective from 8 a.m. on June 9, 
2008 through 5 p.m. June 12, 2008, and will be enforced from 8 a.m. to 
5 p.m. daily during that period.
    (d) Definitions.
    (1) Designated Representative means a Coast Guard Patrol Commander, 
including a Coast Guard coxswain, petty officer, or other officer 
operating a Coast Guard vessel and a Federal, State, or local law 
enforcement officer designated by or assisting the Captain of the Port 
(COTP).
    (2) [Reserved]
    (e) Regulations.
    (1) In accordance with the general regulations in 165.23 of this 
part, entry into or movement within this zone by any person or vessel 
is prohibited unless authorized by the COTP, Sector Northern New 
England or the COTP's designated representative.
    (2) Vessel operators desiring to enter or operate within the safety 
zones may contact the COTP or the COTP's designated representative at 
telephone number 207-767-0303 or designated representative on VHF 
Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz)to seek permission 
to do so. If permission is granted, all persons and

[[Page 31366]]

vessels must comply with the instructions provided by the COTP or the 
COTP's designated representative.

    Dated: May 20, 2008.
J.E. Rendon,
Captain, U.S. Coast Guard, COTP Northern New England.
 [FR Doc. E8-12175 Filed 5-30-08; 8:45 am]
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